United States District Court, W.D. Virginia, Roanoke Division
ERICA D. NORWOOD, et al, Plaintiffs,
OAK HILL ACADEMY, Defendant.
Michael F. Urbanski Chief United States District Judge
se plaintiffs, Erica D. Norwood ("Norwood") and
Elizabeth D. Tate ("Tate") (collectively,
"Plaintiffs"), brought this civil action against
defendant, Oak Hill Academy ("Oak Hill").
Plaintiffs claim a violation of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101,
et. seq., breach of contract, and negligence. Pending before
the court are Oak Hill's motion to dismiss, ECF No. 3,
and motion for summary judgment, ECF No. 12. Pursuant to 28
U.S.C. § 636(b)(1)(B), the court referred both motions
to United States Magistrate Judge Robert S. Ballou for a
report and recommendation. ECF No. 7.
report and recommendation, the magistrate judge recommended
that Oak Hill's motion for summary judgment be denied
because Plaintiffs' claims are not barred by res
judicata. R&R, ECF No. 16, at 18-49. The magistrate judge
further recommended granting Oak Hill's motion to
dismiss, specifically dismissing Plaintiffs' ADA claim
(Count I) with prejudice; dismissing the breach of contract
claim (Count II) without prejudice; and dismissing the
negligence claim (Count III) with prejudice. Id. at
19. Plaintiffs filed objections to the magistrate judge's
report regarding the motion to dismiss, ECF No. 17, and Oak
Hill responded to Plaintiffs' objections, ECF No. 19.
reasons set forth below, the court will
ADOPT the magistrate judge's report and
recommendation to the extent it is consistent with this
opinion (ECF No. 16), OVERRULE
Plaintiffs' objections (ECF No. 17),
GRANT Oak Hill's motion to dismiss (ECF
No. 3), and DENY Oak Hill's motion for
summary judgment (ECF No. 12).
72(b) of the Federal Rules of Civil Procedure permits a party
to "serve and file specific, written objections" to
a magistrate judge's proposed findings and
recommendations within fourteen days of being served with a
copy of the report. See also 28 U.S.C. §
636(b)(1). The Fourth Circuit Court of Appeals has held that
an objecting party must do so "with sufficient
specificity so as reasonably to alert the district court of
the true ground for the objection." United States v.
Midgette, 478 F.3d 616, 622 (4th Cir. 2007), cert,
denied. 127 S.Ct. 3032 (2007).
To conclude otherwise would defeat the purpose of requiring
objections. We would be permitting a party to appeal any
issue that was before the magistrate judge, regardless of the
nature and scope of objections made to the magistrate
judge's report. Either the district court would then have
to review every issue in the magistrate judge's proposed
findings and recommendations or courts of appeals would be
required to review issues that the district court never
considered. In either case, judicial resources would be
wasted and the district court's effectiveness based on
help from magistrate judges would be undermined.
Id. The district court must determine de
novo any portion of the magistrate judge's
report and recommendation to which a proper objection has
been made. "The district court may accept, reject, or
modify the recommended disposition; receive further evidence;
or return the matter to the magistrate judge with
instructions." Fed.R.Civ.P. 72(b)(3); accord 28
U.S.C. § 636(b)(1). "General objections that merely
reiterate arguments presented to the magistrate judge lack
the specificity required under Rule 72, and have the same
effect as a failure to object, or as a waiver of such
objection." Moon v. BWX Techs., Inc., 742
F.Supp.2d 827, 829 (W.D. Va. 2010) (citing Veney v.
Astrue. 539 F.Supp.2d 841, 845 (W.D. Va. 2008)), affd,
498 Fed.Appx. 268 (4th Cir. 2012); see also Thomas v.
Arn. 474 U.S. 140, 154 (1985) ("[T]he statute does
not require the judge to review an issue de novo if
no objections are filed.").
objections that only repeat arguments raised before the
magistrate judge are considered general objections to the
entirety of the report and recommendation. See Veney
v. Astrue. 539 F.Supp.2d 841, 845 (W.D. Va. 2008).
As the court noted in Veney:
Allowing a litigant to obtain de novo review of her
entire case by merely reformatting an earlier brief as an
objection "mak[es] the initial reference to the
magistrate useless. The functions of the district court are
effectively duplicated as both the magistrate and the
district court perform identical tasks. This duplication of
time and effort wastes judicial resources rather than saving
them, and runs contrary to the purposes of the Magistrates
Act. Howard [v. Sec'y of Health & Human
Servs.], 932 F.2d , 509 [(6th Cir. 1991)].
539 F.Supp.2d at 846 (first brackets in original). A
plaintiff who reiterates his previously raised arguments will
not be given "the second bite at the apple Qhe
seeks." Id. Instead, his re-filed brief will be
treated as a general objection, which has the same effect as
a failure to object. Id.
12(b)(6) permits a dismissal when a plaintiff fails "to
state a claim upon which relief can be granted."
Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion to
dismiss, a complaint must contain sufficient "facts to
state a claim to relief that is plausible on its face."
Bell Atl. Corp. v. Twombly. 550 U.S. 544, 570
(2007). The complaint's "[f]actual allegations must
be enough to raise a right to relief above the speculative
level." Id. at 555.
must construe factual allegations in the nonmoving
party's favor and will treat them as true, but is
"not so bound with respect to [a complaint's] legal
conclusions." Dist. 28. United Mine Workers of Am..
Inc. v. Wellmore Coal Corp.. 609 F.2d 1083, 1085 (4th
Cir. 1979). Indeed, a court will accept neither "legal
conclusions drawn from the facts" nor "unwarranted
inferences, unreasonable conclusions, or ...